FC: More on dead bodies, autopsy photos, and privacy rights

[Declan McCullagh <declan () well com>]

*********
In response to:
http://www.politechbot.com/p-02062.html
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From: "Aimee Farr" <aimee.farr () pobox com>
To: <declan () well com>
Subject: RE: Another 1A vs. privacy case: Lawsuit over autopsy photos
Date: Fri, 25 May 2001 19:31:39 -0500
In-Reply-To: <5.0.2.1.0.20010524233810.0297b020 () mail well com>

> [But can a dead man have any privacy interests in photographs of his body?
> Can his family members sue a web site that posted the photos for
> "entertainment, amusement or profit?"

Does a dead man have interests in the physical integrity of his body? No.
Nor does he have a cause of action that will survive his death for his heirs
to assert if his body is injured - death has already occurred. To provide a
remedy for this situation, the law has recognized the interests of family
members through the 'ole "mistreatment/mishandling of corpse" actions, which
the courts refer to as "a special case."

In a like vein, courts have given special consideration to the circumstances
surrounding a person's death by recognizing a privacy interest in the
decedent's heirs. Heirs generally do not succeed to a privacy claim as it is
a "personal" tort, and does not normally "survive" the victim, adhering to
the old common law of England. However, see Reid v. Pierce County, 961 P.2d
333 (Wash. 1998) (holding family members have privacy interests in the
autopsy records of decedents). @
http://www.law.syr.edu/faculty/bender/torts/additionalcases/reid.pdf

Within an FOIA context, courts have withheld JFK autopsy records and
Challenger space shuttle recordings, finding that the records of the
decedents were personal in nature, property of the decedents' estates, and
not subject to disclosure.

> If so, is that any different in principle from photos and video that
evening news airs every
> day?

"Invasion of privacy" is often mischaracterized by the media as a singular
cause of action. There are four privacy torts: unreasonable intrusion upon
seclusion/private affairs, public disclosure of private facts,
appropriation, and false light in the public eye. (Privacy mileage in your
state may vary.)

In the matter at hand, usually brought in terms of public disclosure of
private facts, the courts will try to *balance* the competing interests by
asking: (1) is the matter made public one which would be highly offensive
and objectionable to a reasonable person?, and (2) does the public lack a
legitimate interest in the information? Photos and video on the evening news
are usually not highly offensive to a reasonable person, and are usually in
the public interest.

> Why would
> it be permissible for the state to (before the new law passed) make the
> photos available to anyone willing to trek down to the courthouse but
> impermissible to publish them?

Short answer: Because a "reasonable basis" for legislation is a legal term
of art, and is often anything but reasonable. Law and commonsense are
distinct concepts, often light-years apart when legislatures are in session.

Long answer: You ask why garnering public records would not be actionable as
an intrusion upon seclusion/private affairs, yet publishing the information
would be actionable as public disclosure of private facts. It does seem to
defy logic.

Courts have held that merely because a fact is "in the public view" does not
mean that it should be subject to mass public disclosure when it does not
involve a matter of public concern: the Justicefiles.org decision @
http://www.politechbot.com/docs/justicefiles.opinion.051001.html
("...there is a compelling interest in keeping Social Security numbers
private; the disclosure of that information is highly offensive to the
reasonable person; it is not of legitimate concern to the public.")

One of the very first privacy cases involved a celeb appearing on stage in
*tights* when somebody took a picture with the aid of a flashlight (Manola
v. Stevens, N.Y. Sup.Ct. 1890, in N.Y. Times, June 15, 18, 21, 1890
(defendant enjoined from publishing, a portrait of Manola is here:
http://www.scu.edu/law/FacWebPage/Glancy/html/miss_m_i.html. While often
cited in terms of appropriation, this early case still stands for the
proposition that something can be rather public, and yet private. A woman's
legs were rather private in 1890, and her feelings in this regard deserving
of weighty consideration). See also, Daily Times Democrat v. Graham, 1964,
276, Ala. 380, 162 So.2d 474 (woman photographed when dress blown up in a
fun house); Street v. National Broadcasting Co., 6th Cir. 1981, 645 F.2d
1227, certiorari dismissed 454 U.S. 1095, 102 S.Ct. 667 (finding no invasion
of privacy in the historical drama of a rape which happened decades earlier,
because the plaintiff was a public figure).

Of late, the media has characterized "1A vs. privacy" as a novel issue. The
press gave birth to the latter in the pursuit of the former. [FN1]

Aimee E. Farr
Attorney At Law
Texas
aimfarr () pobox com

1. "Of the desirability -- indeed of the necessity -- of some such
protection, there can, it is believed, be no doubt. The press is
overstepping in every direction the obvious bounds of propriety and decency.
Gossip is no longer the resource of the idle and the vicious, but has become
a trade, which is pursued with industry as well as effrontery." -- Warren
and Brandeis, The Right to Privacy, 1890, 4 Harv.L.Rev. 193, 196.
@ http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html




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